regulation versus antitrust: how net neutrality is defining the boundaries

60 Pages·2011·0.41 MB·English

by  John Gordon

FCC REGULATION VERSUS ANTITRUST:
HOW NET NEUTRALITY IS DEFINING
THE BOUNDARIES
Babette E.L. Boliek*
Abstract: This Article challenges the various jurisdictional theories that
underpin the FCC’s net neutrality regulation. The assertion of jurisdic-
tion by the FCC over any aspect of the Internet ecosystem has raised
populist, congressional, and even judicial rhetoric to a crescendo and re-
sulted in a recent vote to defund the FCC’s efforts. This Article places the
current crisis squarely in the context of the long-standing jurisdictional
struggle between regulation and antitrust law. These two regimes are of-
ten at jurisdictional cross-purposes because, even though they both pur-
port to maximize the social good, they do so by inapposite means. In-
deed, there is a policy choice inherent in the very jurisdictional authority
permitted each regime—a choice that the FCC’s jurisdictional bases for
net neutrality may actually circumvent and obfuscate. Focusing on the
Supreme Court’s seminal decision in Verizon Communications, Inc. v. Law
Offices of Curtis V. Trinko, LLP and the D.C. Circuit’s decision in Comcast
Corp. v. FCC, this Article examines the jurisdictional boundaries between
the regulatory and antitrust camps. In analyzing the jurisdictional limits
of each through the lens of the net neutrality debate, this Article reveals
opportunities for congressional reforms beyond mere rhetoric. To iden-
tify problematic uses of regulatory authority, this Article: (1) creates an
innovative grouping of possible bases for regulatory authority labeled
“satellite jurisdiction” and (2) proposes a new framework to classify possi-
ble jurisdictional overreach in what the author brands as either “proce-
dural opportunism” or “substantive opportunism.” Finally, this Article
recommends a new standard by which both procedural and substantive
jurisdictional opportunism may be tempered and antitrust authority
maximized where most salutary and appropriate.

* © 2011, Babette E.L. Boliek, Associate Professor of Law at Pepperdine University
School of Law. J.D., Columbia University School of Law; Ph.D., Economics University of
California, Davis. The author would like to thank the researchers and reviewers who have
contributed to the production of this Article, including Laura Appleman, Kate Bowles,
David Friedman, Victor Goldberg, Tom Hazlett, Mark Materna, members of Pepperdine
School of Law, and participants in the Willamette School of Law faculty workshop series.
1627
1628 Boston College Law Review [Vol. 52:1627
Introduction
There is a crucial battle playing out in the world of Internet access
provision. While the Internet is the natural home of competing busi-
ness giants and warring digital avatars, the contest that will have the
most sweeping ramifications for the future of the Internet is the turf
war being waged between the Federal Communications Commission
(FCC), on the one hand, and the Federal Trade Commission (FTC)
and the Department of Justice (DOJ), on the other.1 Nothing less than
jurisdiction over the development of the Internet is at stake.
Jurisdiction over Internet access provision is not the first confron-
tation between these particular government agencies; in fact, they have
clashed many times.2 But it is the current iteration of the FCC’s “net
neutrality” regulations that has generated the latest contest. Roughly
defined, net neutrality encompasses principles of commercial Internet
access that include equal treatment and delivery of all Internet applica-
tions and content.3 For some, net neutrality stands further for the
proposition that Internet access operators should not be permitted to
provide different qualities of service for certain application providers
(e.g., guaranteed speeds of transmission), even if those application
providers can freely choose their desired quality of service.4 Net neu-
trality has reinvigorated what may be described as an underlying inter-
agency tug of war that reaches deep within, and far beyond, the com-
munications industry.
Although the two regimes share a commonality of purpose—to
protect consumers and to promote allocative efficiencies in produc-
tion—the two have quite distinct, predominately opposing, means of
securing social benefits. As Justice Stephen Breyer stated when serving

1 The FTC and the DOJ are the two agencies specifically entrusted with the enforcement
of federal antitrust laws. See DOJ, Antitrust Enforcement and the Consumer 2–3 (2005),
available at http://www.justice.gov/atr/public/div_stats/211491.pdf (explaining how the
DOJ and FTC share jurisdiction over violations of antitrust laws).
2 See Verizon Commc’ns, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 401–
05 (2004) (describing how the plaintiff brought an antitrust suit to enforce duties under the
Telecommunications Act of 1996); United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131,
135–47 (D.D.C. 1982), aff’d mem. sub nom., Maryland v. United States, 460 U.S. 1001 (1983)
(describing how the DOJ brought an antitrust action against a regulated telecommunications
company, AT&T, resulting in a breakup and restructuring of the company).
3 See Bruce M. Owen, Antecedents to Net Neutrality, Regulation, Fall 2007, at 14, 14
(“Net neutrality is a slogan that stands for the proposition that the Internet and physical
means of access to it should be available to all on uniform, nondiscriminatory terms.”).
4 Id. Note that in this Article, “application” signifies both applications (such as Google,
Yahoo, and YouTube) and the content delivered by those applications.
2011] Jurisdictional Boundaries of FCC Regulation and Antitrust Law 1629
as a judge on the U.S. Court of Appeals for the First Circuit, although
regulation and the antitrust laws “typically aim at similar goals—i.e., low
and economically efficient prices, innovation, and efficient production
methods”—regulation looks to achieve these goals directly “through
rules and regulations; [but] antitrust seeks to achieve them indirectly by
promoting and preserving a process that tends to bring them about.”5
The battle between these two regimes may be broadly summarized in a
single issue thusly: in the face of the industry-specific regulator, what is
(or what should be) the role of antitrust law?6
Antitrust law preserves the process of competition across all indus-
tries by condemning anticompetitive conduct when it occurs. In con-
trast, industrial regulation by its nature is a public declaration that, in a
given industry, market forces are too weak or underdeveloped to pro-
duce the consumer benefits that are realized in competitive markets—
regulated industries are carved out from the rest of the economy and
are subject to proactive, regulatory intervention that goes above and
beyond antitrust enforcement measures.7 Not surprisingly, regulatory
agencies were historically created as substitutes for market forces in the
few markets that, by the nature of the product or technology, were
natural monopolies or severely prone to monopoly.8 In the vast major-

5 Town of Concord, Mass. v. Bos. Edison Co., 915 F.2d 17, 22 (1st. Cir. 1990); see also
United States v. FCC, 652 F.2d 72, 88 (D.C. Cir. 1980)
Since “the basic goal of direct governmental regulation through administra-
tive bodies and the goal of indirect governmental regulation in the form of
antitrust law is the same—to achieve the most efficient allocation of resources
possible,” we have insisted that the agencies consider antitrust policy as an
important part of their public interest calculus.
United States v. FCC, 652 F.2d at 88 (quoting N. Natural Gas, Co. v. Fed. Power Comm’n, 399
F.2d 953, 959 (D.C. Cir. 1968)).
6 For the purposes of this Article, the term “antitrust law(s)” or “competition law” has
the meaning given it in section 1 of the Clayton Act, 15 U.S.C. § 12(a) (2006), namely all
sections of the Sherman Act, 15 U.S.C. §§ 1–7. In addition, the term includes the Robin-
son-Patman Act, 15 U.S.C. §§ 13–13b, 21a (originally enacted as the Act of June 19, 1936,
49 Stat. 1526) and the Federal Trade Commission Act (“FTC Act”) § 5, 15 U.S.C. § 45 (to
the extent that section 5 of the FTC Act applies to unfair methods of competition). The
definition is modeled on that used in other antitrust acts, such as the National Cooperative
Research and Production Act of 1993, 15 U.S.C. §§ 4301–4306.
7 See Trinko, 540 U.S. at 411–16 (noting that the FCC regulatory regime is more restric-
tive of anticompetitive conduct than general antitrust laws).
8 The seminal antitrust case Standard Oil Co. of N.J. v. United States captured the public
concern regarding monopolization in general:
[T]he conviction was universal that the country was in danger from another
kind of slavery sought to be fastened on the American people, namely, the
slavery that would result from aggregations of capital in the hands of a few
1630 Boston College Law Review [Vol. 52:1627
ity of markets, however, the antitrust law is the default government con-
trol, designed to supplement market forces to inhibit or prevent the
growth of monopoly.
Again, although the goals of the two regimes may be similar, the
means by which each can achieve those goals are in opposition. There-
fore, the threshold determination of which industries are to be singled
out for industry-specific regulation, and to what degree, is of vital im-
portance as it simultaneously determines the predominance of the
regulator versus the antitrust authority in securing the social good.
This Article sets forth a framework to identify the boundaries be-
tween FCC regulatory power and antitrust authority. The goal is to pin-
point for Congress the problematic use of regulatory discretion in de-
fining, or redefining, those boundaries and to propose the standard by
which Congress may address inappropriate use of existing FCC jurisdic-
tion. Specifically, this Article creates a new categorization of “proce-
dural opportunism” and “substantive opportunism” to identify prob-
lematic, regulatory assertions of jurisdiction. The central issue exam-
ined in this Article is to posit what is (or should be) the boundaries of
antitrust law in relation to the FCC’s regulatory authority. This impor-
tant issue has reached a point of public crises in the current net neu-
trality debate.9 Rather than act reflexively, this is an opportunity for
Congress to act clearly to redefine the boundaries between the two re-
gimes that have otherwise been blurred by regulatory overreach.
The net neutrality debate has brought attention to the larger con-
cerns related to the boundaries between the FCC and antitrust authori-
ties. The shaping of net neutrality regulatory policy10 has operated un-

individuals and corporations controlling, for their own profit and advantage
exclusively, the entire business of the country, including the production and
sale of the necessaries of life.
221 U.S. 1, 83 (1911) (Harlan, J., concurring in part and dissenting in part).
9 See Kenneth Corbin, House Moves to Defund FCC Net Neutrality Rules, InternetNews.com,
(Feb. 18, 2011), http://www.internetnews.com/government/article.php/3925561/House-
Moves-to-Defund-FCC-Net-Neutrality-Rules.htmxx (noting the acrimonious political debate
over funding the FCC’s net neutrality plans).
10 Two Chairmen of the FCC believed there should be regulations guiding our use of
the Internet. See Michael K. Powell, Chairman, FCC, Preserving Internet Freedom: Guid-
ing Principles for the Industry, Remarks at the Silicon Flatirons Symposium 5 (Feb. 8,
2004), http://www.americanrhetoric.com/speeches/PDFFiles/MichaelPowellFourInternet
Freedoms.pdf (listing “Freedom to Access Content,” “Freedom to Use Applications,” “Freedom
to Attach Personal Devices,” and “Freedom to Obtain Service Plan Information” as four prin-
ciples for the Industry); Julius Genachowski, Chairman, FCC, Preserving a Free and Open
Internet: A Platform for Innovation, Opportunity, and Prosperity, Prepared Remarks at The
Brookings Institution, (Sept. 21, 2009), http://www.openinternet.gov/read-speech.html (argu-
2011] Jurisdictional Boundaries of FCC Regulation and Antitrust Law 1631
der the assumption that the FCC has the authority, by virtue of its ancil-
lary jurisdiction, to regulate Internet transmission providers.11 This
confidence in the FCC’s scope of authority proved misplaced in Comcast
Corp. v. FCC, decided by the U.S. Court of Appeals for the D.C. Circuit
in 2010.12 Finding no relation between the FCC’s net neutrality policies
and the agency’s legislative mandate, the court clarified that the FCC
may use its ancillary jurisdiction only when the proposed action is spe-
cifically related to the agency’s mandated responsibilities as Congress
delineated in the Communications Act of 1934 (“Communications
Act”).13 In an act of superior confidence or of sheer foolishness, the

ing that “we must choose to preserve the open Internet” and adding the “Fifth Principle of
Non-Discrimination” and the “Sixth Principle of Transparency” to Powell’s four original
freedoms); see also Press Release, FCC, Statement of Commissioner Robert M. McDowell
on the Recent D.C. Circuit Court of Appeals Decision in the Comcast/BitTorrent Case
(Apr. 6, 2010), http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297364A1.pdf
(expressing pleasure that the decision established that the FCC has no power under Title I
of the Communications Act to regulate network management practices of Internet service
providers and hoping that broadband service will not be classified as a monopoly tele-
phone service under Title II); Preserving the Open Internet Broadband Indus. Practices,
Notice of Proposed Rulemaking, 24 FCC Rcd. 13,064, 13,067 ¶ 11 (Oct. 22, 2009) [herein-
after Preserving Open Internet, NPR] (adding nondiscrimination and transparency to four
original net neutrality rules); Reexamination of Roaming Obligations of Commercial Mo-
bile Radio Serv. Providers & Other Providers of Mobile Data Servs., Order on Reconsidera-
tion & Second Further Notice of Proposed Rulemaking, 25 FCC Rcd. 4181, 4182–83 ¶¶ 1–
8 (Apr. 21, 2010) [hereinafter Reexamination of Roaming Obligations] (calling for discussions
on the highlighted wireless debate and FCC’s issuance of a Second NPRM to focus
squarely on the issue of wireless net neutrality).
11 Section 4 of the Communications Act of 1934 authorizes the FCC to “perform any
and all acts, make such rules and regulations, and issue such orders, not inconsistent with
this chapter, as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i)
(2006); see also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
973–74 (2005) (affirming the FCC’s determination that broadband Internet access is not a
common carrier service and will be regulated by ancillary jurisdiction); Nat’l Cable &
Telecomms. Ass’n v. Gulf Power Co., 534 U.S. 327, 330–41 (2002) (holding that the FCC
has jurisdiction over wired and wireless Internet); Am. Library Ass’n v. FCC, 406 F.3d 689,
700–05 (D.C. Cir. 2005) (establishing a two-part test for FCC ancillary jurisdiction). See
generally Communications Act of 1934, ch. 652, 48 Stat. 1064 (codified in scattered sections
of 47 U.S.C.), amended by Telecommunications Act of 1996, Pub. L. No. 104–104, 110 Stat.
5647 (codified as amended in scattered sections of 47 U.S.C.) (detailing Title I through
Title VI classifications of radio dependent services).
12 600 F.3d at 642.
13 Id. at 654 (stating that the FCC’s “authority must ultimately be ancillary” to Title II,
Title III, or Title VI of the Communications Act). Among those duties of interest to the net
neutrality debate are the FCC’s review of interstate telephone service charges and practices
for “reasonableness”; its authority to prescribe “just and reasonable” rates for service; its
task to allocate and assign spectrum licenses; its authority to approve mergers within the
broad definition of telecommunications industries; and its authority to make rate and
other special regulations with respect to cable broadcasters. See, e.g., Communications Act,
47 U.S.C. §§ 201(b), 214, 205(a), 301, 303(a),(c),(i), 309, 310, 332, 543.
1632 Boston College Law Review [Vol. 52:1627
FCC has subsequently enacted three formal net neutrality rules14 based
on the same jurisdictional premise that was defeated in Comcast.15
Indeed, four of the five FCC commissioners have expressed grave
misgivings as to the jurisdictional authority for the agency’s December
2010 rulemaking16 and these doubts are shared by members of
Congress. In a recent committee hearing, for example, Greg Walden, a
Republican Congressman from Oregon, called the FCC net neutrality
rules a “regulatory overreach” and “little more than an end run around”
Congress and the courts.17 In the face of FCC Chairman Julius
Genachowski’s confidence in his agency’s legal standing, Representative
Walden claimed that “[i]n essence, the FCC argues it can regulate
anything.”18
There is perhaps some precedent for the FCC’s bold move, how-
ever. In the case of cable broadcast, for instance, the FCC was able to
use its broad, “public interest” mandate to assert ancillary jurisdiction
over what was at the time a new technology, similar but not identical to
the technologies expressly defined by the Communications Act.19 The

14 See Preserving the Open Internet Broadband Indus. Practices, Report & Order, 25
FCC Rcd. 17,905, 17,932–62 ¶¶ 42–106 (Dec. 23, 2010) [hereinafter Open Internet Order]
(excluding mobile broadband from everything except transparency and basic no-blocking
rules, and creating three net neutrality rules, including (1) Transparency, (2) No Blocking
and No Unreasonable Discrimination, and (3) Reasonable Network Management); Preserv-
ing Open Internet, NPR, supra note 10, at 13,067 ¶ 11 (adding nondiscrimination and trans-
parency to four original net neutrality rules).
15 Comcast, 600 F.3d at 659 (holding that “[t]he Commission’s reliance on section 706
[as a statutory basis for jurisdiction] thus fails”). The FCC itself has concluded in a still-
standing order that section 706 “does not constitute an independent grant of authority.”
Id. at 658 (quoting Deployment of Wireline Servs. Offering Advanced Telecomms. Capa-
bility, 13 FCC Rcd. 24,012, 24,047 ¶ 77 (Aug. 7, 1998)).
16 Open Internet Order, supra note 14, at 18,039–98 (Statement of Chairman Julius Gen-
achowski, Concurring Statement of Commissioner Michael J. Copps, Dissenting Statement
of Commissioner Robert M. McDowell, Statement Approving in Part, Concurring in Part
of Commissioner Mignon L. Cylyburn, Dissenting Statement of Commissioner Meredith
Attwell Baker).
17 David Eldridge, FCC Chief Defends New ‘Rules of Road’ on Net Neutrality, Wash. Times,
Feb. 17, 2011, at A03.
18 Id. Representative Walden added, “I am relieved, however, that the FCC declined
under its newfound authority to regulate coffee shops, bookstores, airlines and other
entities.” Id.
19 See United States v. Sw. Cable Co., 392 U.S. 157, 172–74 (1968) (upholding FCC’s
ancillary jurisdiction over cable based on the agency’s Title III authority to regulate broad-
cast); United States v. Midwest Video Corp. (Midwest Video I), 406 U.S. 649, 670 (1972)
(finding cable rules reasonably ancillary to Title III regulation of broadcast); see also
Robert F. Copple, Cable Television and the Allocation of Regulatory Power: A Study of Government
Demarcation and Roles, 44 Fed. Comm. L.J. 1, 17–19 (1991) (explaining the FCC’s position
that it could regulate cable through ancillary jurisdiction).
2011] Jurisdictional Boundaries of FCC Regulation and Antitrust Law 1633
open-ended nature of the FCC’s mandate, for better or worse, has his-
torically allowed the FCC to expand its jurisdictional reach far beyond
the industries and problems within the contemplation of the original,
legislative draftsmen.20 Such jurisdictional expansion is what critiques
of net neutrality insist is occurring now as the FCC would assert juris-
diction over aspects of the Internet ecosystem.21
The legal uncertainty of FCC authority has led the FCC Chief
Commissioner and some commentators to search for more secure ju-
risdictional grounds for net neutrality rulemaking—to figuratively place
the marketplace for Internet service providers (“ISPs”) deeper within
the regulated state and, concomitantly, perhaps further out of reach of
antitrust law.22 If by the Comcast standard, ancillary jurisdiction provides
insufficient basis for net neutrality regulation then, commentators ar-
gue, the FCC should redefine ISP services to be functionally the same
as those services for which Congress has provided express regulatory ju-
risdiction.23 In practical terms this means that the FCC would reclassify
Internet access from an “information service” (Title I) to a “common
carrier” status (Title II).24 This is not an endeavor to be taken lightly,

20 The most notable example of expansive jurisdiction over new technologies is the
FCC’s jurisdiction over the incipient cable industry. See Copple, supra note 19, at 18–19
(describing the FCC’s dramatic expansion of authority over the cable industry). Another
example of the expansive boundaries of ancillary regulatory authority, whether real or
perceived, is the DOJ’s restraint from acting against Western Electric, an unregulated
equipment supplier of the original Bell System monopoly. The DOJ concluded that anti-
trust action was unwarranted because Western Electric was “indirect[ly] regulated” by vir-
tue of its sales to the regulated Bell operating companies. United States v. W. Elec. Co.,
1956 Trade Cas. (CCH) ¶ 68,246 (D.N.J. 1956).
21 The FCC mandate of regulating telecommunications for the “public interest, con-
venience, and necessity” is a standard praised by some for its adaptability and central focus
on the public wellbeing. As its sponsor Senator Clarence Dill approvingly noted, the public
interest standard of the new 1927 Radio Act was a great advancement in the law as “[i]t
covers just about everything.” Lucas A. Powe, Jr., American Broadcasting and the
First Amendment 61 (1987); see also C.C. Dill, A Traffic Cop for the Air, 75 Am. Rev. Re-
views 181, 181, 184 (1927) (explaining Senator Dill’s views about the regulation of radio
broadcasting). For critics, this broad, amorphous mandate permits “neither guidance nor
constraint on the agency’s action.” Glen O. Robinson, The Federal Communications Act: An
Essay on Origins and Regulatory Purpose, in A Legislative History of the Communica-
tions Act of 1934, at 3, 14 (Max D. Paglin ed., 1989) [hereinafter Legislative History].
22 See infra notes 68–125 and accompanying text (discussing the tug-of-war between an-
titrust and regulatory authority).
23 See infra notes 140–148 and accompanying text (discussing the reclassification of
ISPs from Title I “information services” to Title II “common carriers”).
24 See Open Internet Order, supra note 14, at 17,932–62 ¶¶ 44–106 (reducing the net neu-
trality rules to three); Appropriate Framework for Broadband Access to the Internet over
Wireline Facilities, Policy Statement, 20 FCC Rcd. 14,986, 14,986–88 ¶¶ 1–4 (Aug. 5, 2005)
(using ancillary jurisdiction to blur the line between Title I and Title II services in the
1634 Boston College Law Review [Vol. 52:1627
nor is it evident that the regulator is (or should be) empowered to
make such a decision. To the extent that the regulated state is the ex-
ception to the norm, permitting the regulator to define which services
and industries fall within its own mandate is to place the proverbial fox
in charge of the hen house.
Ironically, jurisdiction over wireless Internet access, the transport
system not subject to the recent net neutrality rules, is the one technol-
ogy where FCC jurisdiction is most easily asserted.25 Wireless Internet
access can be regulated under the FCC’s Title III authority over all
broadcast licenses by direct insertion of regulatory terms and condi-
tions into the operators’ spectrum license agreements.26 In addition to
licenses, the FCC shares oversight responsibilities with antitrust authori-
ties with respect to any merger involving a regulated communication
company, and it can dictate onerous terms to which the parties must
accede to close the deal.27 The recent NBC/Comcast merger provides
an example of how the FCC has imposed net neutrality obligations on a
single firm outside of the traditional rulemaking procedures and classi-
fication limitations.28 Although as a matter of law regulatory jurisdic-
tion is properly asserted with respect to spectrum licenses and mergers,
it is questionable as a matter of good public policy that these bases of
authority should be used to impose terms by contract that would oth-
erwise be outside the scope of the regulator’s statutory authority.
As argued in this Article, the recent Comcast decision should not be
dismissed as an inconvenient hurdle to be sidestepped by reclassifica-
tion; rather it marks a pivotal invitation to Congress to redefine the
boundaries between the FCC and antitrust authorities. In the long
wake of assorted jurisdictional tugs of war between the two regimes,
and amidst a legacy of accusations of regulatory capture and adminis-

context of net neutrality). See generally Communications Act of 1934, ch. 652, 48 Stat. 1064
(codified in scattered sections of 47 U.S.C.) (detailing Title I through Title VI classifica-
tions of radio dependent services).
25 Moreover, there is cause for concern that wireless net neutrality may interfere with
the proposed development of wireless broadband under the recently released National
Broadband Plan. See A Nat’l Broadband Plan for Our Future, Notice of Inquiry, 24 FCC
Rcd. 4342, 4349–50 ¶¶ 23–26 (Apr. 8, 2009) [hereinafter Broadband Plan NOI] (question-
ing whether the net neutrality guidelines adopted in other contexts should be applied to
broadband services, which pose different technological challenges).
26 The genesis of Title III of the Communications Act reaches back to the 1927 Radio
Act and, to some extent, the 1912 Radio Act before that. See supra note 21. Technologies
that are broadcast over the electromagnetic spectrum may do so only upon licensing by
the FCC. See 47 U.S.C. § 303 (2006).
27 See 15 U.S.C. §§ 18, 21(a) (2006) (granting FCC authority to approve mergers).
28 See infra note 198 and accompanying text.
2011] Jurisdictional Boundaries of FCC Regulation and Antitrust Law 1635
trative overreach,29 the net neutrality debate accentuates historic pref-
erences for antitrust versus regulation, a subject which should be revis-
ited and squarely addressed. Before that can be done, however, the
rules of the road—the issue of jurisdiction—must be clearly decided.
The analysis of the relevant jurisdiction is broken into two rival
camps: (1) regulatory jurisdiction and (2) antitrust jurisdiction. The
first camp, regulatory jurisdiction, the more complex of the two, is fur-
ther divided into two subparts of particular concern (a) legacy-based
regulation and (b) “satellite jurisdiction.” The first subpart of regula-
tory jurisdiction, legacy-based regulation, refers to the FCC’s congres-
sionally designated core industry. The concern with legacy-based regu-
lation is that the FCC will engage in procedural opportunism: that is, the
agency may exploit the service classification process to extend its own
regulatory authority.
The second subpart of regulatory jurisdiction analyzed is “satellite
jurisdiction.”30 This is a new and unique grouping of various theories of
regulatory jurisdiction. This novel grouping brings keen focus to those
exertions of FCC authority that are the most legally and politically
troubling—areas where the FCC may engage in substantive opportunism.
These areas include certain uses of the FCC’s Title I service classifica-
tion, its spectrum licensing authority, and the FCC’s authority to ap-
prove mergers in the telecommunications arena.31
In contrast to regulatory jurisdiction, however, antitrust jurisdic-
tion is not tethered to categorical classifications but, when triggered, is
plenary over all private commercial actors.32 The jurisdictional ques-
tion for antitrust authorities is not in what legacy-based category Inter-
net access properly exists, but whether an Internet access provider, in a
properly defined market, is acting or is likely to act counter to competi-
tive norms. Antitrust jurisdiction is largely conduct-based and not lim-

29 As Judge Harold Greene concluded in the decision that structurally reformed wire
telephony, “For a great many years, the Federal Communications Commission has strug-
gled, largely without success, to stop [anticompetitive practices] through the regulatory
tools at its command.” See Am. Tel. & Tel. Co., 552 F. Supp. at 222–34 (creating and describ-
ing the “Modified Final Judgment”).
30 See infra notes 170–203 and accompanying text.
31 See infra notes 170–203 and accompanying text.
32 In general terms, the jurisdictional reach of the Sherman Act is plenary across in-
dustries and has been interpreted as co-extensive with the scope of the federal commerce
power. See Rasmussen v. Am. Dairy Ass’n, 472 F.2d 517, 521 (9th Cir. 1972) (“The reach of
the Sherman Act is ‘as inclusive as the constitutional limits of Congress' power to regulate
commerce.’” (quoting DOJ, Report of the Attorney General's National Committee
to Study the Antitrust Laws 62 (1955))).
1636 Boston College Law Review [Vol. 52:1627
ited to technical distinctions between industries33 but, rather, assessed
against anticompetitive conduct within relevant markets.
By careful examination of various jurisdictional bases for regulation
of net neutrality enforcement, this Article demonstrates that net neu-
trality as currently articulated is likely outside the scope of even the
heightened authority the FCC enjoys for legacy-based regulation. More-
over, to the extent antitrust authority is the default regime in regula-
tion’s absence, antitrust principles also do not reach all so-called “anti-
neutral” network conduct. As interesting as these findings may be in and
of themselves, they are presented here to emphasize the current degree
of agency overreach and the need for Congress, and Congress alone, to
define the FCC’s jurisdictional basis for net neutrality. Until that occurs,
the substantively opportunistic use of license and merger authority is
particularly problematic as it may mask a lack of regulatory authority to
enact policy through more formalized administrative processes.
This Article is organized as follows: Part I sets forth a synthesis of
the primary policy goals for net neutrality regulation as articulated in
the legal and economic scholarship.34 Part II both describes the cur-
rent state of communications regulation and antitrust law and recounts
the historic development of Internet access regulation.35 Part III ex-
plores the different jurisdictional theories for net neutrality regulation,
both legacy-based regulation and satellite jurisdiction.36 Part IV pro-
vides a similar jurisdictional analysis of net neutrality as potentially en-
forced by antitrust authorities.37
In conclusion, this Article argues that FCC discretion to classify
new services as legacy services should be limited and bounded by a pre-
sumption that new services are to be lightly regulated, unless rebutted
by legislatively determined evidentiary criteria. Far from avoiding the
Comcast standard, this Article argues that Congress should embrace and
expand Comcast’s application. The standard is a simple one: to assert

33 By contrast, the FCC’s jurisdiction varies according to whether a network is a wire-
line telephony service (Title II) or a wireless service (Title III). Compare 15 U.S.C. § 1
(2006) (declaring all contracts, conspiracies, or combinations in restraint of trade to be
illegal under antitrust law), with 47 U.S.C. § 303 (2006) (describing powers of the FCC
relating to wireless communications), and 47 U.S.C. §§ 201–276 (describing powers of the
FCC relating to common carriers under Title II). If, for instance, wireline phones and
wireless phones are determined by the antitrust authorities to be sufficiently close substi-
tutes as to constitute one market, these services may be evaluated together for antitrust
purposes.
34 See infra notes 39–67 and accompanying text.
35 See infra notes 68–125 and accompanying text.
36 See infra notes 126–203 and accompanying text.
37 See infra notes 204–273 and accompanying text.